Oakland city officials argue against motion for police receivership
on November 9, 2012
In a federal court document filed Thursday, city officials argued against a motion by local attorneys for a federal takeover of the Oakland Police Department, pushing instead for the creation of two new positions that would monitor the department’s progress in enacting the last 10 of 51 reforms ordered by a federal judge in 2003.
The people in these two new positions—a compliance director and assistant chief of constitutional policing—would focus solely on department compliance with the tasks mandated in the 2003 Negotiated Settlement Agreement, according to the report filed by City Attorney Barbara Parker. This oversight would lead to “swift and sustained reform” in a way that an appointed federal receiver could not, the report stated.
The city’s proposition is an answer to attorneys John Burris and Jim Chanin’s motion last month to ask Federal District Judge Thelton Henderson to place the OPD under federal receivership. A hearing is scheduled for December 13, when Henderson will decide the fate of the department.
The OPD’s problems stem from the 2003 settlement in the wake of the “Riders” trial, in which a group of four veteran Oakland officers, who called themselves the Riders, were accused of planting evidence, making false police reports and beating suspects. The result was a $10 million settlement paid by the city to 119 plaintiffs—mostly young men with a criminal record, usually drug related. Part of the settlement also included a Negotiated Settlement Agreement (NSA), under which the department promised to make more than four dozen reforms to prevent future abuses.
Nine years later, the department still has 10 reforms to make. According to a quarterly report released in October by independent monitor Robert Warshaw, the department is in partial compliance with seven tasks, including addressing complaints through the OPD’s Internal Affairs division and use of force investigations. The department is out of compliance with the use of a computerized system that tracks officers who may be at risk of police misconduct. The program logs information about each OPD officer, such as sick leave, instances of use of force and officer-involved shootings, to proactively identify officers who show warning signs of misconduct and get them help before an issue arises, said Police Chief Howard Jordan at an August neighborhood safety meeting.
“We are dismayed by the level of compliance reflected in this report, as should be the Department and the City of Oakland,” wrote Warshaw in his October report. “We can only characterize the current condition in the Department as one of stubborn resistance to compliance with an Agreement made long ago: an Agreement that simply enumerates concepts common in police agencies across the country.”
Prior to the release of this report, Chanin and Burris, who represented plaintiffs in the
Riders trial, filed a motion in early October to place the department under partial federal receivership and ensure that the final reforms would be made. “It’s not what we wanted or expected,” Chanin said at an October press conference to discuss the motion for receivership. “We can’t wait any longer.”
Most people—including police officials, community members and the attorneys involved with the suit—say they do not know what receivership could entail. “No one knows what will happen if we go into federal receivership,” Jordan said at the August neighborhood safety meeting. “There’s never been a police department to do this. Schools and prisons, yes, but not police.”
But the lawyers pointed to the nine years it has taken for the OPD to make even its current strides toward compliance. Their goal in asking for a receivership would be to make sure the department was NSA compliant. “We don’t know ultimately if this is going to work. But we can’t keep going down the same path. We have to make a change,” Burris said at the October press conference to discuss the motion for receivership.
The city disagrees. “Appointment of a receiver is not appropriate here,” states the city’s Thursday report. “Where Defendants have made progress toward compliance with the NSA and the Department is significantly improved as a result; where less intrusive relief has not been exhausted or proven futile; where City leadership has acted in good faith to implement needed reforms; and where a receiver is not likely to bring about swift change.”
Instead of a federal takeover, on Thursday city officials proposed the hiring of a compliance director, who would be a full-time, salaried employee with police experience and a focus on addressing the remaining tasks, rather than more extensive power over the department, as suggested in the motion for receivership.
The director would have the authority to modify department policy, oversee expenditures of related resources and evaluate impediments to compliance, including leadership. This position would be complemented by an assistant chief of constitutional policing, who would be someone from outside the OPD, but with Jordan’s support. City officials cited a portion of the Oakland city charter that prohibits the transfer of power by any public officer, including the mayor or chief of police, as an obstacle to the city’s own creation of this position—an obstacle that would be eliminated with a judge’s consent.
“Everyone in this case wants the same thing: constitutional policing,” Jordan said in a Friday press release about the city’s response. “In my collaboration with the Mayor and City Administrator, and in my ongoing work with my command staff, I have seen and continue to see the utmost commitment to achieving that goal. We have made concrete steps toward reform and are on a path to full compliance.”
This week’s city report mentions a federal receiver’s potential effect on police morale, the “extreme” and “unprecedented” nature of receivership, and the department’s improved response to public demonstrations like the Occupy Oakland anniversary on October 25, as topics to consider before appointing a receiver. The report calls the OPD’s response to the Occupy anniversary “successful,” stating that there was only one instance of use of police force, two arrests and no acts of vandalism.
City officials also pointed to the implementation of recommendations from the Frazier Group, which evaluated the OPD’s response to the Occupy demonstrations on October 25, 2011, as signs of improvement and willingness to reform. The Frazier Group suggested that the OPD improve its crowd control policies, track the use of non-lethal weapons like beanbag rounds, and draft better policies concerning officers’ use of force so that reports are thorough. In Thursday’s federal court document, city officials said a member of the Frazier Group observed the OPD handling of the Occupy anniversary and was “impressed with OPD’s operations and the level of planning the Department had conducted.”
Warshaw had criticized the OPD’s response to the Occupy demonstrations in a special report released last month, calling the department’s actions “troubling.” His comments focused on the OPD’s investigation of use of force by police officers and supervisors’ lack of technical proficiency or experience to review Internal Affairs investigations stemming from Occupy Oakland.
In their response this Thursday, city officials said money had been set aside to improve and rebuild OPD forces, including $5 million from the general reserve fund and enough money to fund two classes of incoming OPD recruits to rebuild the force to just over 800 officers. The report also states that an information technology manager would be hired to oversee and maintain new police technologies, whose current inefficiencies were noted in the monitor’s October report.
The report also states that the department has hired an independent contractor, Robert Wasserman, to identify other factors impeding the department’s full compliance of NSA tasks. According to the report, Wasserman has an extensive background in law enforcement and was a senior executive in police departments in Boston and Houston.
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